The Nacchio Appeal: Part 5 (The Prediction)
J. Robert Brown | Monday, December 24, 2007 at 06:15AM So how will this case come out?
When the three judges leave the oral argument, it is traditional to meet immediately afterwards and resolve the case. As a result, it is highly likely that they have already voted and decided whether to reverse or affirm. One judge will be assigned the task of drafting the majority opinion and circulating it to the other two for agreement. Sometimes (but not often) there can be a back and forth discussion among the judges on the language of the opinion. To the extent anyone is dissenting, agreement only needs to be reached with one other judge.
The Tenth Circuit is a relatively collegial place. Dissents are relatively unusual. It is, therefore, likely that the panel will strive to reach a unanimous verdict. Were Judge Kelly deciding the outcome, it would be a reversal on the materiality issue. Were Judge Holmes deciding the outcome, it would likely be to uphold the trial judge. Judge McConnell was less definitive but certainly troubled by some of the legal issues raised in the appeal.
The panel won't reverse on the materiality issue. While the $300 million is a small number, there are a significant number of qualitative factors present that could have influenced reasonable investors. Moreover, it would result in an acquittal. If the panel opts to reverse on this issue, Judge Holmes could dissent.
The exclusion of Fischel, on the other hand, is a procedural error that will permit a new trial. Moreover, while Judge Holmes did not seem moved by the issue, it is probably the one matter that could be the basis for a unanimous decision to reverse. The panel will have to explain why it was reversible error when the defense never requested the hearing but this is not an insurmountable problem.
The final word: 3-0 decision, reversing on the failure to provide a Daubert hearing before excluding the testimony of Daniel Fischel.
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